Vaccine Watch: A Third Vaccine Court Case

With thousands of autism cases pending in federal vaccine court, and numerous test case decisions coming this fall, some are looking to see what-- if anything-- can be learned from prior court decisions. While most vaccines are well-tolerated by most children, side effects do rarely occur and victims are entitled to compensation in this special vaccine court. Previous blogs have discussed the case of Hannah Poling: a thimerosal (mercury) vaccine case the government conceded last fall (the mercury exposure in childhood vaccinations has been greatly reduced in recent years due to safety concerns); and a 1986 case in which the court determined vaccinations aggravated a pre-existing condition called "TS " in a child, resulting in his mental retardation and autism.

Now, CBS News has obtained details of a third case of vaccine injury in a child born in 1974. It may be one of the first cases in which the government compensated a child who became mentally retarded and developed autistic behavior after a vaccine injury. In this case, unlike the two others we've looked at, the child did not have a known pre-existing condition. What does this tell us that's relevant to the current debate over vaccines and autism/ADD? Medical experts are likely to differ on that front. Another "anomoly"? Early evidence of a possible vaccine/autism link that the government hasn't publicly discussed? Did the child have a pre-existing susceptibility to vaccines that simply went undiscovered? No matter the interpretation, the case proves the vaccine/autism debate has been going for at least two decades.

In excerpts from the case below, the government agreed the child suffered "a residual seizure disorder" after his second Diphtheria, Tetanus & Pertussis (DPT) vaccine but attempted to argue that the child's mental retardation and brain injury were unrelated to the seizure disorder and were, instead, caused by his autism. On the other hand, the court found that the autistic behavior, brain injury and mental retardation were all part of the vaccine injury. (It is significant to note that this case involves injury from a DPT vaccine that has since been replaced by what is believed to be a safer version).

Case Excerpts as written by the vaccine court judge: Elizabeth E. Wright, Special Master

FACTS

CHILD was born on August 23, 1974, the 9 lb. 9 oz. product of an uncomplicated pregnancy and delivery. CHILD developed normally until the age of four months when he was administered his second DPT vaccination on December 23, 1974... That evening, he experienced a grand mal seizure. CHILD's mother... took CHILD to the... emergency room where he was found to have a fever of 101.8 degrees at that time and a bulging fontanelle...CHILD had a seizure on March 25, 1975, with a temperature of 102 degrees. The next day, he had another seizure with a fever less than 102 degrees...On April 15, 1975, CHILD experienced a petit mal seizure without an associated fever... CHILD apparently did well until mid-July 1975, when he had four seizures, with fever around 100.7 degrees... CHILD had additional seizure activity in November 1975. Again in February 1976, CHILD had seizures. At that time, a repeat EEG was grossly abnormal...when CHILD was 21 months of age, (CHILD's doctor) noted that CHILD had a vocabulary of only two to three words. At that time, (CHILD's doctor) discussed... the possibility that CHILD was mentally retarded and developmentally delayed. CHILD currently is severely mentally retarded and has an intractable seizure disorder.

(The government) respondent has conceded that CHILD suffered a residual seizure disorder as set forth in the Vaccine Injury Table, but argues against a finding that CHILD also suffered an encephalopathy (brain injury). Moreover, (the government) contends that CHILD suffers from autism, which has produced his severe mental retardation and developmental delay. Consequently, (the government) urges that compensation in this case be limited to those expenses that reasonably might be incurred for CHILD's residual seizure disorder, not for expenses he might accrue because of his mental retardation, developmental delay and autistic behaviors.

The question of encephalopathy.

(Government physician) believes that CHILD currently suffers from autism and mental retardation that are the result of an independent underlying neurologic condition that pre-dated the vaccination. However, all tests that were conducted to determine possible causes for CHILD's condition have revealed none. Furthermore, (government physician) has posited no origin of any underlying neurologic condition. (Government physician) would have us believe that CHILD's grand mal convulsion following his second DPT vaccination was simply a manifestation of benign febrile seizures and that CHILD had another concurrent underlying (but etiologically undetermined) neurological disorder which later produced his severe mental retardation and autism.

I reject this theory for several reasons. First, the Vaccine Act's defines encephalopathy as "any significant acquired abnormality of, or injury to, or impairment of function of the brain." Section 14(b)((3)(A). This definition is extremely broad. CHILD's initial grand mal seizure indicated an impairment of function of the brain. The question becomes whether this was a benign event unrelated to any lasting neurological sequelae. In my view... (CHILD's treating pediatric neurologist) is in a better position to accurately assess CHILD's illness than (government physician). Beginning in 1980, when he first evaluated CHILD, (CHILD's neurologist) diagnosed CHILD as having static encephalopathy probably related to the time of his first seizure at four months of age.

Based on the foregoing, I find that there is a preponderance of the evidence that CHILD suffered an encephalopathy within 72 hours of the administration of a DPT vaccination on December 23, 1974, and that no alternative cause for such encephalopathy has been satisfactorily shown.

Current Status

Today (written in 1991), CHILD is 16 years old, approximately five feet five inches and weighs one-hundred and thirty pounds, has intractable seizures, an IQ of approximately 50 or less, and is unable to perform any of his self care... he requires considerable attention and handling. (CHILD's mother) has been attempting to do most of his care by herself while also raising a five year old daughter. CHILD cannot be left alone for any period of time...He is ambulatory, slightly stooped, and moves in slow motion. He presents with a continuous drool which is apparently due to his dropped head and mouth position. His hands and feet are often cold and bluish. The cause of his circulation problems is unknown. He is incontinent and not toilet trained...Despite his seizure condition, CHILD is relatively healthy with minor problems of constipation and drowsiness. He will often place his fingers into his ears or clap his hands over his ears. CHILD has been treated over the years for recurrent ear infections. CHILD's day at both home and school consists primarily of aimless wanderings or sitting for long periods on the ground "indian style". CHILD is frequently absent from school and has no consistent programming. CHILD receives $499 per month from SSI and is Medical eligible. He will most likely lose both of these benefits under an award from this Program.